Failures in pollution controls for salmon are illegal, groups say

By ROBERT MCCLURE, P-I REPORTER

Published 10:00 pm, Wednesday, April 19, 2006

Quoting the government's own dire reports about how pollution of Puget Sound harms salmon, environmentalists Wednesday fired a legal salvo charging that state and federal regulators' dereliction of duty amounts to breaking the law.

Salmon are dying in Seattle creeks. Toxic copper is being dumped at Seattle boatyards. And across the region, a filthy mix of oil, heavy metals, chemicals, pet waste and street crud flows into local waterways after every big rain, as pointed out in the filing by three Seattle-area environmental groups and two national organizations.

Much of the evidence of pollution presented in the filing has long been known to government officials. But the notice lays the groundwork for a major lawsuit against the U.S. Environmental Protection Agency charging that it has failed to make Washington's water-pollution-control system give salmon enough protection.

Because Puget Sound chinook salmon are guarded by the Endangered Species Act, that's illegal, the environmentalists charged.

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"We've reached a place where we're stalled out on making many gains for water quality, and it's endangering salmon," said Sue Joerger, head of Puget Soundkeeper Alliance. "We need to deal with these issues now. We can't keep putting them off into the future, or we won't have anything left to protect."

Hundreds of businesses in the Puget Sound region are either discharging pollutants directly into local waters, or are allowing polluted stormwater to flow off roofs and paved areas, according to government records cited in the environmentalists' filing.

Nor is the federal EPA carrying out its responsibility to look over the state's shoulder as the state issues those pollution licenses, environmentalists charged.

More than 1,800 permits to pollute Puget Sound or other local waters have been granted by the state Ecology Department. Most are supposed to be updated every five years. Yet the EPA has reviewed just 21 of those licenses to pollute since mid-2002, the EPA told the environmental groups.

Mike Gearheard, regional director of water and watersheds for the Pacific Northwest, said he hadn't seen the legal papers filed Wednesday, but that his agency doesn't have time to consider every pollution permit in Washington, or in Oregon, two states the EPA has trusted to handle their own water-pollution programs. The reason? The EPA is handling the job for all of Idaho and Alaska.

"I'm certainly not going to sit here and say the pace of (cleanup) is as fast always as it should be, or could be, but nevertheless that is the construct of the Clean Water Act -- that we can learn as we go," Gearheard said. "And we're probably getting better all the time."

The state Ecology Department vigorously defended Washington's efforts to control water pollution.

"We're very confident about the quality of the permits we're issuing," said Glenn Kuper, an Ecology spokesman. "We feel like we have one of the highest-quality programs for water quality, nationally."

State programs to rescue Puget Sound date to the early 1980s. Most recently, Gov. Christine Gregoire has called for a massive program to rejuvenate the Sound, assembling a high-powered task force to spearhead the project.

Yet environmentalists charged that the Ecology Department is at the same time agreeing to pollution limits that are known to be harmful to salmon.

They quoted the department's statement that "stormwater is the leading contributor to water quality pollution in our urban waterways. As urban areas grow, it's the state's fastest growing water quality problem."

But they also quoted Ecology's statement that "it may take decades or longer" to clean up the stormwater problem.

Federal wildlife agencies have harshly criticized state efforts to protect water quality.

State requirements to treat pollution flowing off roads were called "arbitrary and unwarranted" in a December 2004 letter from the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. The agencies said the rules did not appear to be based on "available data, rigorous analysis or reasonable assumptions."

Rather, the federal agencies recommended that "all roads" receive what was called advanced treatment because of research showing that stormwater could kill fish -- even when it met water quality standards.

In February the agencies said a stormwater permit that Ecology proposed would allow harmful effects on fish behavior and physiology "likely to reduce the viability" of exposed fish -- including shrinking populations of salmon and sturgeon

It was part of a series of criticisms of the state by federal wildlife agencies.

"They took our comments hard," said Steve Landino, Washington state habitat conservation manager for the National Marine Fisheries Service. "They were a little taken aback."

The agencies have agreed to work together, Landino said.

But under the current system, those federal agencies have no way to force the state to clean up pollution more. The environmentalists are seeking to establish a system in which federal wildlife agencies would have much more power to require a higher degree of cleanup.

In that situation, "the seriousness ramps up," Landino said. "That's a pretty significant thing. EPA would have to do some things."

Recently the EPA did reject part of Washington's proposed update of water-quality standards, sending the standard for temperature back to Ecology because the EPA said salmon require cooler water than proposed by the state in some instances.

The environmentalists' notice was filed Wednesday by the Puget Soundkeeper Alliance and People for Puget Sound, both based in Seattle; Duvall-based Washington Trout; the National Wildlife Federation and another national group, Public Employees for Environmental Responsibility.